a blog about sexuality, gender, law and culture

October 13, 2011

Congratulations Judge Nathan

Congratulations to Alison Nathan, an openly lesbian former Associate White House Counsel, whom right-wingers almost scared the Senate into failing to confirm. The bad guys failed, and the confirmation succeeded by a 48 to 44 vote. Ali will join the Southern District of New York, where she will sit alongside (figuratively) openly gay judges Deborah Batts and Paul Oetken. Nathan and Batts are the only two openly lesbian federal district court judges; Oetken is the one and only openly gay male federal district court judge.

The most heavily invoked reason for conservative opposition during the debate over Nathan was not her sexual orientation or even the code word fear of "judicial activism." Instead, bizarrely enough, Sen. Jeffrey Sessions spoke for 18 minutes mostly about her openness to considering law from outside the U.S. in her rulings.

Conservatives seized on a book chapter that Nathan wrote about international human rights issues: “Arresting Juxtapositions: The Story of Roper v. Simmons” in Human Rights Advocacy Stories. Conservative legal commentator Ed Whelan condemned the chapter's endorsement of the “‘internalization’ of international human rights law arguments” into Supreme Court decisionmaking on constitutional issues.

Nathan's response to questions from members of the Senate Judiciary Committee illustrates her wild, left fringe thinking: Nathan said that foreign law would have

“no relevance to my interpretation of the U.S. Constitution.” [But she acknowledged that there is] “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decisions….

If confirmed, I would follow binding Supreme Court precedent in this and all areas.

Prior to her White House work, Nathan clerked for Justice Stevens, worked at Wilmer Cutler, and taught for brief stints at Fordham and NYU Law Schools. Her fellow clerks from the 2001-2002 term, including individuals who had worked for all nine Justices, submitted a letter to the Senate Judiciary Committee endorsing her nomination.